Tuesday, February 20, 2018

Mexico's wild ride to marriage equality

Mexico is a current hotspot of the marriage-equality movement. Here's where things stand as of Feb. 20, 2018.

As was the case in the U.S., Mexico's legalization of same-sex marriage is proceeding state by state but unlike in the U.S., there is no possibility for a single ruling from the highest court that will overturn same-sex marriage bans nationwide. Even the Supreme Court of Justice of the Nation (SCJN) will have to go state by state.

Mexico has 31 states plus the federal entity Mexico City. Marriage equality has arrived in Mexico City and in 13 states — via three different routes: Legislative legalization, Supreme Court rulings, and state administrative decisions to stop enforcing their ban:

Same-sex marriage also became possible everywhere else in Mexico following a June 3, 2015, ruling by the SCJN's First Chamber, but only if a couple is able to jump through some hoops. The ruling declared that any law that defines marriage as "between a man and a woman" is unconstitutional (and therefore is ultimately doomed) — and the declaration of unconstitutionality means that when any same-sex couple (or group of couples) goes to a federal judge and asks for an injunction (amparo) against the local civil registry allowing them to marry, the judge must grant it. The process works and couples use it, but it can take more than a month and cost up to US$2,000 to pay a lawyer for help.

As Mexico's marriage-equality movement continues, more states should see the freedom to marry without couples having to get an amparo. In each state, it would happen one of four ways:

1. The state congress will legalize same-sex marriage.

2. The state government will decide to stop enforcing its ban on same-sex marriage. (While this gets the job done, it could be reversed by a new administration.)

3. The Supreme Court will kill a state's ban via the route that happened in Jalisco, Chiapas and Puebla states.

Here's how that works. When any law is passed in Mexico and takes effect, there is a 30-day window for certain governmental entities to challenge the law with an "action of unconstitutionality" filed with the full Supreme Court. What Jalisco, Chiapas and Puebla did is make some changes to their marriage laws, unrelated to marriage equality, and the revised paragraphs also included existing man-woman language. The revisions qualified as "new" laws that could be challenged during the 30 days after they took effect. The National Human Rights Commission filed actions of unconstitutionality against the man-woman language and the SCJN struck down the three states' bans in separate rulings in 2016 and 2017. The states likely were unaware they were setting up their same-sex-marriage bans for strikedown.

Remarkably, given that this legislative blunder has led to marriage equality in three states that weren't ready to pass marriage equality, the state congress in Nuevo León repeated the blunder in January 2018 and the National Human Rights Commission pounced again, on Feb. 9, 2018. The Supreme Court accepted the case and the Nuevo León ban's days are numbered.

4. A project of the organization México Igualitario — which brought about the 2015 SCJN ruling that all bans on marriage equality are unconstitutional and the order that all judges nationwide that must approve all marriage-equality amparos — is likely to succeed state by state. It's not easy to understand, so in a nutshell:

When one of Mexico's 256 second-level federal appeals courts or the First Chamber of the federal Supreme Court rules that an existing law is unconstitutional in five separate amparo rulings in a row, and uses identical language in each ruling, that creates "jurisprudence" against that law — and jurisprudence can then be used to force a state congress to eliminate the law — in this case, a ban on same-sex marriage.

It's an unusual process, for sure, but it's ongoing nationwide and several states are well on the way to arriving at the magic number of five identical rulings in a row from a higher-level court. When a state gets there, the Supreme Court then has the power to move directly against a state's legislature.

And that's Mexico's march toward marriage equality in a nutshell. The key thing to remember is that the 2015 ruling by the federal Supreme Court's First Chamber created jurisprudence binding on all courts that any ban on same-sex marriage is unconstitutional. That's why state legislatures are legalizing same-sex marriage, why some state and city governments have stopped enforcing bans, and why federal politicians, including Mexico's president, have supported marriage equality by attempting to change federal laws and the federal Constitution. Because all bans eventually will be struck down anyway.

The jurisprudence says: "Marriage. The law of any federative entity that, on the one hand, considers that the end of it [marriage] is procreation and/or that defines it [marriage] as that which is celebrated between a man and a woman, is unconstitutional." ("Matrimonio. La ley de cualquier entidad federativa que, por un lado, considere que la finalidad de aquél es la procreación y/o que lo defina como el que se celebra entre un hombre y una mujer, es inconstitucional.")

PEÑA NIETO: On May 17, 2016, Mexican President Enrique Peña Nieto proposed amending Mexico's Constitution to make marriage equality the law of the land and sent his proposal to Congress. On Nov. 9, 2016, the proposal was rejected by the Chamber of Deputies' Committee on Constitutional Matters, and died. The vote was 19-8 with 1 abstention. 'Yes' votes came from the PRD and Morena party deputies and from two PRI deputies, one of whom is openly gay. 'No' votes came from the PAN, PRI, PVEM, PANAL and PES parties.

It remains unclear whether marriage equality could have been imposed on the states via the pathway Peña Nieta proposed because marriage regulation is a matter of state, not federal, law. In the courts, though, it's a different story. State bans on same-sex marriage have been found unconstitutional because Article 1 of Mexico's Constitution bans "all discrimination motivated by ... sexual preferences."

(Amending Mexico's Constitution requires a two-thirds vote by members present the day of the vote in the Chamber of Deputies and the Senate of the Republic, followed by ratification by the state congresses of at least 16 of Mexico's 31 states. Mexico City doesn't get to vote on ratification.)

NEW LGBTI ACTIVISM: Peña Nieto's move, Congress' procrastination on his bills, and vocal opposition to his plan from religious figures spurred unprecedented organizing and activism by Mexican LGBTI groups and the formation of new groups — including Movimiento por la Igualdad en México (MOViiMX) and Frente Orgullo Nacional MX (FONMX).

OPPONENTS ORGANIZE: Peña Nieto's move likewise stirred unprecedented organizing by opponents of same-sex marriage, who staged marches and rallies across the country on Sept. 10, 2016 — some of them very big — and a large march in Mexico City on Sept. 24, 2016. Opponents also collected signatures and submitted citizens' initiatives to the Senate and the Chamber of Deputies to amend the Constitution to restrict marriage to opposite-sex couples. Congress has taken no action on the initiatives.

ADOPTION: On the eve of the Mexico City march, the Supreme Court issued jurisprudence binding on all courts securing adoption rights for same-sex couples nationwide. It says: "ADOPTION. The best interest of the minor is based on the suitability of the adopters, within which are irrelevant the type of family into which [the minor] will be integrated, as well as the sexual orientation or civil status of [the adopters]." ("Adopción. El interés superior del menor de edad se basa en la idoneidad de los adoptantes, dentro de la cual son irrelevantes el tipo de familia al que aquél será integrado, así como la orientación sexual o el estado civil de éstos.")